VetBizLawyer Podcast

Government Misclassification Case

1. Frequently Asked Questions on FLSA Litigation Against the U.S. 1. What is the government's stance on when a Fair Labor Standards Act (FLSA) collective action against the United States is considered "commenced"? The government argues that under 29 U.S.C. § 216 and § 256, a collective action under the FLSA against the United States is not legally "commenced" until each plaintiff both files a complaint and submits a separate written consent to become a party plaintiff in that action. They emphasize that these are two distinct requirements under the statute. 2. What is the plaintiffs' counter-argument regarding the requirement of written consent, especially for named plaintiffs in an FLSA collective action? Plaintiffs, such as Mr. Lambro, argue that filing a complaint that expresses an intent to participate in a collective action should be sufficient, particularly for the named plaintiff who initiated the lawsuit. They contend that requiring a separate written consent from the named plaintiff is redundant and that the purpose of the consent requirement in § 216 is to protect unwary individuals from being drawn into lawsuits without their explicit agreement. 3. How has the court addressed the differing interpretations of the written consent requirement for FLSA collective actions against the U.S.? The court, in alignment with the government's interpretation, has held that the plain language of 29 U.S.C. § 256 necessitates both the filing of a complaint and a separate written consent from each party plaintiff for the action to be considered commenced. The court has declined to adopt the plaintiffs' argument that a named plaintiff's signature on the complaint sufficiently indicates consent, stating that it is not the court's role to rewrite the statute based on policy arguments about potential redundancy. 4. What is "equitable tolling" and what is the central dispute surrounding its availability in FLSA cases against the United States? Equitable tolling is a legal doctrine that allows a court to pause or extend the statute of limitations (the deadline for filing a lawsuit) in certain circumstances where a plaintiff was prevented from filing on time due to reasons beyond their control. The primary dispute is whether this doctrine is applicable to FLSA claims brought against the United States, given the principle that waivers of the government's sovereign immunity are to be narrowly construed and that statutes of limitations within such waivers are often considered jurisdictional. 5. What are the government's key arguments against the application of equitable tolling in FLSA lawsuits against the U.S.? The government typically argues against equitable tolling by asserting that the FLSA's statute of limitations, as it applies to the United States, is a condition of the government's waiver of sovereign immunity and is therefore jurisdictional, meaning it cannot be waived or tolled. They often cite the Brockamp factors, which courts consider when determining whether equitable tolling should be implied against the government, emphasizing aspects like the explicitness and emphasis of the statute of limitations, as well as any existing statutory exceptions. 6. What are the plaintiffs' main arguments in favor of applying equitable tolling to FLSA claims against the United States? Plaintiffs argue that equitable tolling should be available in FLSA cases against the United States just as it is against private defendants. They contend that no special or more restrictive standard should apply to the government in this context. Plaintiffs often cite case law suggesting that equitable tolling is generally available in FLSA cases under appropriate circumstances and reference Irwin v. DVA to argue against creating special exceptions for the government regarding tolling. They may also argue that specific circumstances, such as misleading infor https://www.whitcomblawpc.com/

David v. Goliath Government Contracting Series

Size and Status Protest Episode Joseph: All right. We've got a few more people funneling in, but we'll go ahead and get started because we want to be respectful of everyone's time. We sent out an invite, or rather a reminder, about an hour before the 10:00 Mountain Time, about an hour before this kicked off with some instructions, so hopefully, I know I got some feedback on the last one that some people had some difficulty getting into the room. Hopefully those technological issues have been worked out. So I'm going to kick it off. Joseph: Hello everyone, and welcome back to another version of David versus Goliath, and 10 weapons small businesses and general councils need to win. If this is your first webinar with us, welcome. If you have joined us before, we are flattered and welcome back. Joseph: Today, we're going to start the first of what will be a multi-part series in post award bid protest. Specifically, we're going to be covering size standard protest and socioeconomic status protests. Both are governed by the Small Business Administration or SBA, and both must be submitted within a very limited timeframe. With me today is [Dani Terolli 00:01:03], she is one of our associate attorneys in our firm, and has moderated all of our previous webinars. The structure of today's webinar will be primarily a Q & A. The questions are the variety that we regularly get from clients and from prospective clients on what to do immediately following the award of a contract or the government's notice of potential award. These types of questions usually creep in when you, as the disappointed offer, are convinced that the awardee either does qualify because it is too large, or because it doesn't meet within the socio-economic set-aside criteria. Joseph: The time today will be split with the first 20 minutes of question and answer being between Dani and me, and we will try to reserve the last 10 minutes to answer questions that you, as the audience, may have, and there should be a Q & A button on your screen. You can submit questions that way, and then of course we'll moderate, Dani will moderate those and we'll have an opportunity to touch on those. A few of you have already started to send chats. All right, and Tom is in the background and he will be helping you guys with any technical issues or any questions. If I'm not speaking up loudly enough, just let us know through the chat, and I'll try to adjust. Joseph: All right. So without further ado, I'll let Dani shoot the first question, and that be the last thing I read today. Dani: Thanks Joe, so I guess to get us started, why don't you tell the audience what a side standard protest actually is. Joseph: All right. So a side standard protest to the nerds in the room, like myself, will sound a little self-explanatory. So I believe that most people, most of the companies represented on today's meeting are small businesses. You hear that term thrown around a lot in the media, but small business hat is a defined term by the Small Business Administration. The easiest way for me to present that is our law firm, and they're all controlled by NAICS codes. So our law firm's NAICS code is 54000, office of attorneys. The size standard for office of attorneys, I believe as the most recent publication of the SBA size standards, is $12 million. And that is $12 million as per year, as demonstrated by literally the very top line revenue receipts of your company as average over the last three or five years. And when I say three or five years, the SBA recently promulgated rules that allowed owners or companies to pick either three or five years, depending on what is the most advantageous to that company. https://www.whitcomblawpc.com/

David and Goliath Government Contracting Series Episode 2

This episode covers Evaluation Criteria and LPTA vs. Best Value Contracts https://www.whitcomblawpc.com/

Government Contracting Series: David vs. Goliath Episode 1

To see the entire transcript to this podcast, please visit the post at https://www.whitcomblawpc.com/blog/video/government-contracting-best-practices [https://www.whitcomblawpc.com/blog/video/government-contracting-best-practices] https://www.whitcomblawpc.com/

13 Representations and Warranties Issues to Consider

13 THINGS TO LOOK FOR IN A SELLER’S REPRESENTATIONS AND WARRANTIES  My name is Joe Whitcomb coming to you from Whitcomb Selinsky PC. We are a Denver-based law firm in the South Metro portion of Denver Colorado. It is April 6, 2020, and we are in the throes of the COVID 19 crisis. I am bringing you another episode of Vetbizlawyer podcast and video. Today I'm going to speak to you about representations and warranties which are documents that normally accompany the purchase or sale of a business. For most of today's discussion I'm going to be bringing you items you would be looking for as a buyer in the seller's representations and warranties.  The Company that you as the seller are acquiring is usually referred to as the target company. The representations and warranties are normally presented to you during the course of the transaction but before you actually close on the purchase of the company. The name representations and warranties, does a good job describing what the documents are. Representations are issues that the seller of the Company is informing the buyer about before the purchase. Warranties go farther than that in that they are more akin to a guarantee. Normally, as a buyer, if a seller meaningfully misrepresents a warranty, you would have the option of withdrawing from the purchase or getting a portion of your money refunded by the seller. Conclusion  If you are currently asking yourself, "why go to the trouble of getting all of these representations and warranties in writing?" It may be because your planning on doing a thorough due diligence investigation before closing. However, that process will be time-consuming and expensive. Getting the seller to make meaningful commitments in its representations and warranties, could make the costs of unearthing negative information expensive for the seller.   Put differently, if the seller knows that you have the authority to not only pull out of negotiations but also the authority to charge the seller money for your time and financial investment then it may incentivize a more truthful disclosure from the outset. Also remember, most Letters of Intent come with exclusivity provisions, which means that while you are negotiating the purchase of this company you will be foreclosed from purchasing one of the seller’s competitors. This means you are effectively "out of the market" the entire time you are performing your due diligence on the target company. Of course, the same is true for the seller, but they may not have the same urgency that you do in the transaction. Therefore, a great way to save you time, money, and aggravation is insisting on thorough and accurate representations and warranties covering the above 13 items.  This is all for this week’s vetbizlawyer video and podcast. I hope that you and yours are safe and secure during this COVID crisis. https://www.whitcomblawpc.com/